Neumeyer v. Krakel

Opinion op the court by JUDGE HOBSON Reversing, followed by dissenting opinion op CHIEF JUSTICE PAYNTER, IN WHICH JUDGE GUFFY and JUDGE WHITE concur. Previous to February 1, 1900, the police force of the city of Louisville consisted -of 1 chief of police, 6 captains, 10 lieutenants, 10 sergeants, 9 detectives, and 290 patrolmen. By an ordinance enacted by the city council, which took effect on January 31st, it was provided that there should be thereafter only 4 captains, 8 lieutenants, 8 sergeants, 294 — 628 — patrolmen, and that detectives should be selected from, the number of regular patrolmen provided for in the ordinance. The board of public safety complied with the ordinance, discharging from the force 10 men, and' making'the reduction in the other officers as directed by it. Appellee, Andrew Krakel, was a captain of police, and was redhced from captain, with a salary of $1,300 a year, to lieutenant, with a salary o'f $1,000 a year. It appears that the 10 discharged policemen brought suit questioning the authority of the general council to control the matter by ordinance, and1 it was held by the Jefferson Circuit Court that the ordinance wasvoid1. Theboardof publicsafety then restored the lOmen who had been discharged, and reinstated appellee in his previous position as captain. This order took effect on the 22d day of April, 1900. The general council refused to recognize the authority of the board of public safety, or to .approve the pay roll for appellee’s salary; and he thereupon instituted this action against appellant as auditor of the city for a mandamus, compelling him to issue a warrant for the payment of his salary. On final hearing the court below awarded appellee the relief sought, and the auditor prosecutes this appeal. The city ordinances fixed the number of men" to be employed on the police force, and the salaries to be paid, the different grades of. officers. It was also stipulated that only the number of officers and employes prescribed by the ordinances should be employed, that their salaries should be no more than the sums fixed by it, and that the pay rolls I should be made up and certified each month for the approval of the general council, and should not be audited or paid until so approved. It was held by the court below that the ordinances referred to are in conflict with the statutes of the State, and therefore, void1. Several ques — 629 — tions arising on tlie appeal, and of no little difficulty, have been presented by counsel with much force: 1. Has the general council of the city power to regulate the number, and fix the salary, of the officers and members of the police force? The act of July 1, 1893, for the government of cities of the first class, contains the following provisions: “The legislative power of said cities shall be in a board of twenty-four councilmen and in a board of twelve aldermen, which shall be styled the general council.”' Section 2765. “The general council shall have power to pass, for the government of the city, any ordinance not in conflict with the Constitution of the United States, the Constitution of Kentucky, and the statutes thereof.” Section 2783. “Except as otherwise herein provided, the general council may, by ordinance, prescribe the duties, define the term of office, and fix the compensation and the bond and time of election of all officers and agents of the city.” Section 2756. “The following executive boards are hereby established in said cities: A board of public works and a board of public safety. ...” Section 2802. “Said bdard’s shall have the right to employ such officers and agqnts as may be necessary, and, subject to such limitations as the general council may prescribe, may fix the compensation of such officers and agents.” Section 2809. “The board of public safety shall consist of three members. Each member of said board shall receive a salary of not less than twcr thousand' five hundred dollars-. The board shall have exclusive control, under the ordinance of the general council, of all matters relating to . . . the police department. . . . Section 2861. If this act had remained unchanged, the power of the general council to pass the ordinance in question would be clear. But the amendatory act of March 28, 1894, provided further, as follows: “The gov630 ■eminent, administration, disposition and discipline of the police department and police force shall be such as the board of public safety may, and is hereby authorized, from time to time by rules, orders and regulations, prescribe, but in strict conformity to the provisions of ‘An act for the .government of cities of the first class.’ ” Section 2873. “The police force shall consist of one chief of police, with the rank of colonel; one assistant chief of police, with the ■rank of major; captains of police, not exceeding in number one to each fifty of the total number of patrolmen; lieutenants of police, not exceeding one to each thirty patrolmen; ¡sergeants of police, not exceeding in number one to each thirty patrolmen; detectives of police, not exceeding twelve in number, one of whom shall be chief of detectives; and patrolmen, not exceeding three hundred in number. The board of public safety shall appoint all the members of the police force. The board of public safety shall have power, ¡and it is authorized to increase the police force by adding to the number of patrolmen from time to time, provided the •general council shall have previously made an appropriation for that express purpose. The' board of general council may include in the annual tax levy an amount sufficient to provide for the compensation of the additional patrolmen authorized to be appointed pursuant to the provisions -of this section. The board of public safety shall maintain .and continue a detective force, and shall select and appoint to perform detective duty as many patrolmen, not exceeding twelve in number, as said board of public safety may, ■from time to time, determine, to be necessary to make this branch of the police force efficient. The patrolmen so selected and appointed shall be called detectives, and shall, while performing such detective duty, be vested with the same authority and be entitled to receive and — 631 — be paid sucb salary as policemen, as tbe general council may, from time to time, provide. But the board of public-safety may, by resolution, reduce to the grade of patrolmen and transfer such detectives, or any number of them, to perform patrol or other police duty, -and when so transferred they shall only be entitled to receive and be’paid the-same rate of compensation each as patrolmen of police.” “The board of public safety shall designate the salary and compensation for each member and officer of said police-force, and may fix the salaries and compensation of such-clerks and employes, other than policemen, whom they shall be authorized by law to employ, subject, however, to the gross amount of the appropriation made by the general council for the support of said department. . . . The compensation of the members of the police force shall be payable monthly by pay rolls as provided by ordinances.” Section 2884. Without the last section (2884) there would be no doubt of the power of the general council to regulate by ordinances the number of policemen, the officers to be appointed, and the salaries to be paid. But it is argued that this section vests in the board of safety the entire power of determining the salaries of the police force, -subject to the-amount of the appropriation made by the general council. The act is entitled “An act to amend an act entitled ‘An act for the government of cities of the first class, approved July 1, 1893.’” It does not purport to make a change in the legislative power of the city, and does not affect the authority of the general council, except' so far as its provisions, are in fact inconsistent with the original act. In the-first section of it (2873) supra, it is provided: “The government, administration, disposition and discipline of the police department and police force shall be such- as the board — 632 — of public safety may, from time to- time, by rules, orders and regulations, prescribe, but in strict conformity to the provisions of ‘An act for the government of cities of the first class.’ ” Thus, while the government and administration of the police force are committed to the board of-public safety, they must be in strict conforihity to the provisions ■of the original act, by which the general council, as the legislative power of the city, was empowered to pass all •ordinances for its government, not in conflict with law (section 2783), and to prescribe the duties, term of office, and compensation of all minor city officers (section 2756). This power of the council is also recognized in the section next quoted (section 2880). This section, it will be observed, fixes the maximum' number of officers and policemen, but not the minimum. It also vests in the board of public safety the appointment of all the members of the police force, but it does not confer on the board the power of fixing the number of the police force within the maximum limits given'. It provides that the board of public safety may increase the police force from time to time, “provided the general council shall have previously made an appropriation for that express purpose,” and that the patrolmen selected as detectives shall “be paid such salary as policemen as the general council may, from time to time, 'provide.” When the board of public safety is denied power to increase the force, until the general council has previously made an appropriation for that express purpose, the general council, as the legislative branch of the city government, is left, as before, with power to regulate the matter. The provision also, that patrolmen selected as detectives are to be paid such salary as policemen .as -the general council may, from time to time, provide, is a recognition of the power .of the council to regulate the sal — 633 — aries of the police force; for there could, under the statute, be only twelve detectives, and it can not reasonably be supposed the Legislature intended that the council might regulate the salaries of these twelve, but be without power-to regulate the salaries of the remainder. It is said that the section authorizes the board of safety to increase the police force by adding to the number of patrolmen above 300, provided the general council shall have previously made an appropriation for that express purpose, and that this is by implication authority for the board of safety to regulate the- number of patrolmen up to 300. But we are unable to see that this construction of the stat-. ute e¿n be maintained; for why should the council regulate the lesser matter of a small increase in the force, and not •the greater matter of the force itself? Besides, this would require us to add to the words of the statute. The words of the section are, “The board of public safety shall have-power, and it is authorized, to increase the police force by adding to the number of patrolmen from timé to time.” The statute does not read, “to increase the police force by adding to the number of patrolmen above three hundred,”' and this was clearly not the intention. The first sentence-of the section fixes imperatively the maximum number of officers and patrolmen. The next sentence confers on the board of phblic safety power to appoint the members of' the police force. Then follows the clause in regard- to an increase of the force. When- may the board- increase the -force from time to time? The statute answers, “Provided the general council shall have previously made an appropriation for that express purpose.” What force may the board increase from time to time? The context answers, “The force on hand at the time of each increase,” The -power to appoint the force is wholly' distinct from the: — 634 — power to regulate the size .of the force. The words, “for that express purpose,” can have no reasonable effect, unless they are meant to take away from the board of safety the power to use an appropriation made for a force of a certain size in paying a larger number of patrolmen. More- apt •words could not have been employed to show that the ■board of public safety were not to havethepower to increase the number of patrolmen without the consent of the council. This power of the council is also recognized1 in the •other section quoted, defining the powers of the board of .safety (section 2884) by the words, “whom they shall be authorized by law to employ,” and by the concluding word's ■of the section, ‘the compensation of the members of the police force shall be payable monthly by pay rolls as provided by ordinances.” Taking the act as a whole, we think it inevitable that this ■section (2884) is not to be so read as to make it conflict with the other sections quoted. It is essential to the good government of cities that legislative power for local purposes be vested somewhere. Universal experience shows this. In the State government the number of officials and the salaries attached to the various offices are fixed by law. So, in the federal government, congress decides what offices shall exist in the army, navy, or other departments, and the salaries. In the city government the statute prescribes neither the number of certain minor officers nor the salaries, but leaves these to be determined as the local necessities may demand. The legislative branch ■of the government represents the people most directly, and is the proper power to determine matters of this kind. All the sections we have quoted may be read together. Section 2884, when read with the others, only empowers the board ■of safety to designate the salary and compensation for each — 635 — member and officer of the police force, “whom they shall be authorized by law to employ, subject, however, to the gross amount of the appropriation made by the general council for the support of said department.” In other words, the council may regulate by law the number to- be employed1, and create such offices as are to be filled, and may determine by law the salary attached to each office; When this is done the board of public safety names the appointees, and decides what place each shall fill, and thus designates the salary or compensation of each member of-' the force; and, in case the council does not by ordinance fix the salary for any officer, the board of public safety may fix the salary, subject to the amount of the appropriation. It can not be held the Legislature intended that the general council should determine the number of officers and men who were to serve on the police force, and that the board of safety should alone have powertofixtheircompensation; for, plainly, the two powers go together. The-board of safety is nowhere authorized to regulate the number of offices- that are to exist. This, being alegislative function's to be exercised by the general council, unless expresly taken awayfrom them. The power to regulate the salaries-of the several offices is equally a legislative function. The-question is not what power the amending act confers on-the general council. The power in contest was vested in the council when that act was passed, and the only inquiry is, did it take away a power naturally belonging to such, bodies and uniformly exercised by them? The council is-to levy the taxes and make the appropriations, -and it is. essential to an intelligent discharge of this duty that they should have power to determine what offices shall exist' and the salaries to be paid. This power in- all govern — 636 — ments is exercised by the representatives .of the people who are empowered to levy the taxes. Unless expressly taken away it belongs to the legislative branch of the city government, and it is a well-settled rule that an isolated expression in an act will not ordinarily be so construed as to conflict with a general legislative policy. In the several acts for the government of the cities of the State, the separation and integrity of the legislative, executive, and judicial departments are carefully guarded. The general council is not referred to in the amended act, and it can not be concluded that the Legislature, if it had contemplated .so vital a change in the city government, would have undertaken to make it in such an obscure way as this. Board of Council of City of Danville v. Fiscal Court of Boyle Co. (Ky.), 51 S. W., 157; (21 Ky. L. R., 196) Courtney v. City of Louisville, 12 Bush, 424; Phillips v. Pope’s Heirs, 10 B. Mon., 172; Sams v. Sams’ Adm’r, 85 Ky., 396, (3 S. W., 593); Henderson’s Adm’r v. Railroad Co., 86 Ky., 389, (5 S. W., 875); Bird v. Board, 95 Ky., 195, (24 S. W., 118); Bailey v. Com., 11 Bush, 688. We conclude, therefore, that the'ordinance in question is not void, but a proper exercise of legislative power on the part of the city council. 2. Has the general council power by ordinance to require that all pay rolls must be approved by it before payment? Section 2743, Kentucky Statutes, is as follows: “In said ■cities there shall be a legislative, an executive and a judicial department. Neither of these departments shall exercise any power properly belonging to either of the others, except as permitted in this act.” It is insisted for appellee that the approval of a pay roll is an executive function, and! can not, under the statute quoted; be exercised by the city council. But it appears from the record that this ordinance has been in force in the city of Louisvile since the — 637 — year 1877, and was re-enacted soon after this statute was passed. It was in force when the act of March 23, 1894, was passed, and seems to be distinctly recognized by the concluding words of section 2884, above quoted: “The compensation of the members of the police force shall be payable monthly by pay rolls as provided by ordinances.” There are good reasons why the body which levies the tax and makes the appropriations should approve the pay rolls, and thus keep in touch with the administration of the city Oovernment, and this ordinance, having been in force for so many years, and being recognized by the statute, can not be held to be in violation of it. In approving a pay roll, the council acts ministerially, and may by mandamus be required to perform its duty, and 'approve any proper pay roll which it may reject. By section 2898, the city comptroller has a seat in the general council, with the right to debate on any question pertaining to his department. By section 2901, no claim against the city shall be audited, “unless it is authorized by law or ordinances.” If the auditor can issue warrants that are' binding on the city, and the treasurer is bound to pay them, although never1 passed upon by the comptroller, the general council or the mayor, the effect might be ruinous, to the city, if the auditor were faithless or imposed upon. By section 2822, the general council must approve all contracts of any of the boards where the amount expended is 'over $2,000, and it is given power to provide by ordinance that contracts under $2,000 must be first approved by the council. These sections, taken together, seem to us to sustain the ordinance in question. 3. Can the board of public safety use in any year, in addition to the amount appropriated by the general council, any balance in the treasury arising from the levy for previ — 638 — ous rears and unappropriated? The general council made an appropriation of $273,000 for the fiscal year ending August 31, 1900. There was in the treasury, in addition to this-, $19,964.40 arising from levies made in previous years for the police department, but not appropriated. This balance arose from the fact that under section 2982 the general council can not appropriate more than 95 per cent, of the estimated revenue of the current year, unless more than that shall be actually collected. The $19,964.40 was money collected from the levies of preceding years over and above the 95 per cent, and not appropriated by the general council. The statute provides: “Any unexpended balance of an appropriation in any current fiscal year shall be added by the comptroller to the amount appropriated for the same purpose out of the levy for the succeeding year. Unappropriated balances of levies- in any current fiscal year when collected shall be passed by the treasurer to the credit -of the same funds for the succeeding year.” Section 2982, Kentucky Statutes. The question is, under this statute, whether, when the council has made the annual appropriation of $273,000 for the police department, the board may use in addition, the $19,964.40, which has not been appropriated by the council? If the board may do this, then the amount of its expenditures- in the year will not depend upon the appropriation made by the council, but to some extent -on wh-at balance may be in the treasury. Substantially the same question was before this court in Board of Edü-cation of City of Paducah v. City of Paducah (Ky.), 56 S. W., 149, (21 Ky. L. R., 1650) and we there held that the unappropriated -balance in the treasury from a previous levy could not be expended by the 'board until it was appropriated by "the council. That case seems conclusive of this, and we see no reason for changing the rule then announced-. The pur — 639 — pose of tlie statute was to give the council control of the amount to be expended, and if, during the year, money comes into the treasury from an older levy, this must remain until appropriated by the council, and may be taken into consideration in making the levy for the police force for the ensuing year. . 4. May the general council cut down the police' force? Section 2874, Kentucky Statutes, and section 2882, Id., seem intended to provide, in effect, that the policemen shall not be removed by file board of safety during good1 behavior. But section 28 of the Constitution forbids the General Assembly from creating any office “the appointment of which shall be for a longer time than a-term of years.” Under this provision, the Legislature can not give to any city official an office for life or good behavior. Section 93 of the Constitution provides that inferior State, officers may be appointed for a term not exceeding four years, and section 107 makes the same provision as to inferior county or district officers. Section 160 provides, after specifying certain officers of towns and cities: “But other officers of towns or cities shall be elected by the qualified voters therein or appointed by the local authorities thereof as the General Assembly may by general law provide; but when elected by the voters of a town or city their terms of office' shall be four years, and until their successors shall be qualified.” Thus it will be seen that State, county, and district officers, and those elected in cities, are limitéd to a term of four years, and no office can be conferred for a longer time than a term of years. It was probably not contemplated that appointive officers might hold for a longer term than those elected; for the more important offices are those filled by election, and, as all officers are limited to a term — 640 — of years, it would seem, under the Constitution, that appointive officers can not by statute be given a longer1 term than four years-. In Commissioners v. George (Ky.), 47 S. W., 779, (20 Ky. L. R., 938) it was held that an -act of the Legislature creating a six-years term of -office was in conflict with' the Constitution, in so far a-s it conferred a term of over four years, but that the officer held under the statute for the constitutional term. It would seem that the same rule should be applied- to the statute before us, -and that it is not wholly void, but that the appointees o-f the board of public safety may hold during good behavior, to the extent of the term limited by the constitution, and'- can not be removed in. the meantime by the board1 so as to put others in their places1, except as provided by law. But this question is not presented. The power to abolish an opee is- wholly different from the power to discharge the incumbent. Sections 2874, 2882, Kentucky Statutes, are only limitations upon the power of the board -of safety to make changes- in the personnel of the force. They do not purport to restrict the legislative power -of the general council in regulating what offices shall exist. The council is not named- in these sections, and there is nothing in. the- act to- show that the framers of it had in mind the restriction of the law-making authority of the city. The city council, in the exercise of its legislative power, may -abolish any city office which it has- discretion to create, at any time when, in its judgment, the good of the city may so require. The council might,' therefore, abolish the office of two captains of police, or of a certain number of lieutenants, -sergeants, or- patrolmen, -and the incumbents of the offices so abolished would have no cause of complaint against the city. Otherwise, the city might be compelled1 to maintain a large police force indefinitely, — 641 — which a change of circumstances had1 for years rendered unnecessary. Dill. Mun Corp., sections 168-170; State v. Douglas, 7 Am. Rep., 87; State v. Pinkerman (Conn.) 28 Atl., 110, (22 L. R. A. 653.) It results that appellee had no cause of action upon the facts shown, and was not entitled to the mandamus sought. Judgment reversed, and cause remanded, with directions to the court below to dismiss appellee’s petition.